UPDATE on Breslow v. Wells Fargo – Same as the Old Boss: Eleventh Circuit Withdraws Opinion Just Four Days Later, But to Little Practical Effect

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Just a few days ago, we reported on the Eleventh Circuit’s decision in Breslow v. Wells Fargo, which reaffirmed precedent that strict liability can arise in autodialer, prerecorded-message and texting suits under the Telephone Consumer Protection Act (TCPA), if a caller or texter obtained consent from the intended recipient, but that party’s cell number was reassigned. We noted how this reinforced the Eleventh Circuit’s prior decision in Osorio v. State Farm to the same effect, and which in turn aligned the Eleventh Circuit on this issue with the Seventh Circuit under its decision in the Soppet v. Enhanced Recovery case. Now, just days after it issued its ruling, the Eleventh Circuit – acting on its own momentum and not at request of the any of the parties – has withdrawn its Breslow decision.

In a short order, the Circuit Judges who decided Breslow vacated their original opinion, and held instead the prior Eleventh Circuit Osorio decision should have controlled in Breslow. Specifically, the replacement Breslow decision observes that Osorio concluded that the “called party” for purposes of whether consent exists for an autodialed call or text or a prerecorded message is the subscriber to the cell phone service at the time the call or text is transmitted. Accordingly, the court now holds, the decision in Breslow that the “called party” means “either the subscriber or the user of the phone called” has been vacated. A full discussion of Soppet, Osorio, and Breslow can be found at this entry and in its linked posts.

Ultimately, the Eleventh Circuit’s present maneuvering is to little practical effect from the standpoint of strict TCPA liability. The outcome of Breslow’s case against Wells Fargo remains the same – even though Wells Fargo did not know the phone number that it reached had been reassigned from a customer from whom it had obtained consent to a new subscriber, the Breslows, it was liable under the TCPA. And, similarly, the reality that companies can still face TCPA liability that they can do little to avoid – due to cell phone number reassignments – remains, alas, unchanged.

 

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